Opinion
Case No.: 2:17-cv-3747 CBM (JEMx)
2019-10-08
Jason LEOPOLD and Buzzfeed, Inc., Plaintiffs, v. U.S. DEPARTMENT OF JUSTICE, Office of the Attorney General, et al., Defendants.
Matthew V. Topic, Pro Hac Vice, Loevy and Loevy, Chicago, IL, Nabiha Syed, Pro Hac Vice, Buzzfeed Inc, New York, NY, Rachel Steinback, Law Office of Rachel Steinback, Los Angeles, CA, for Plaintiffs. Amy Powell, US Attorney's Office, Raleigh, NC, for Defendants.
Matthew V. Topic, Pro Hac Vice, Loevy and Loevy, Chicago, IL, Nabiha Syed, Pro Hac Vice, Buzzfeed Inc, New York, NY, Rachel Steinback, Law Office of Rachel Steinback, Los Angeles, CA, for Plaintiffs.
Amy Powell, US Attorney's Office, Raleigh, NC, for Defendants.
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
CONSUELO B. MARSHALL, UNITED STATES DISTRICT JUDGE
The matter before the Court is the parties' cross-motions for summary judgment.
I. BACKGROUND
This motion concerns several Freedom of Information Act (FOIA) requests for documents submitted by Plaintiffs to Defendants agencies, which include the DOJ, the FBI, the Department of Homeland Security (DHS), the CIA, the National Security Agency (NSA), and the Office of the Director of National Intelligence (ODNI).
A. Leopold's Requests
At issue here are three of the FOIA requests that relate to President Trump's tweets.
1. Records from November 8, 2016 to the present "that mention[ ] or refer[ ] to President Donald Trump's use of Twitter and his tweets and constitute[ ] discussions about his tweets"
2. Records that "that mention[ ] or refer[ ] to and constitute [ ] discussions about President Donald Trump's
March 4, 2017 tweet that said, ‘Terrible! Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!" ’
3. Records that "mention[ ] or refer[ ] to and constitute[ ] discussions about President Donald Trump's March 4, 2017 tweet that said, ‘Is it legal for a sitting President to be ‘wire tapping’ a race for president prior to an election? Turned down by court earlier. A NEW LOW!’ "
After all Defendants completed processing Plaintiffs' request, counsel for the parties conferred in good faith in an attempt to work out remaining issues. Plaintiffs ultimately challenged the scope of the FBI's search and the assertions of Exemption (b)(5) to withhold documents. Those disputes are the subject of these motions.
II. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment must demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
B. Freedom of Information Act
The Freedom of Information Act ("FOIA") provides that "upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with the published rules stating the time, place, fees (if any), and procedures to be followed" the agency "shall make the records promptly available to any person." 5 U.S.C. § 552(a)(3)(A). If an agency refuses to furnish the requested records, the requester may file suit in federal court and obtain an injunction "order[ing] the production of any agency records improperly withheld." 5 U.S.C § 552(a)(4)(B) ; see also Taylor v. Sturgell , 553 U.S. 880, 885, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). "Most FOIA cases are resolved by the district court on summary judgment, with the district court entering judgment as a matter of law." Animal Legal Def. Fund v. U.S. Food & Drug Admin. , 836 F.3d 987, 989 (9th Cir. 2016).
There are nine exemptions in FOIA that the government may invoke to protect a document from public disclosure. 5 U.S.C. § 552(b) ; see also Minier v. Cent. Intelligence Agency , 88 F.3d 796, 800 (9th Cir. 1996). But "these limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Dep't of Air Force v. Rose , 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). "[T]he strong presumption in favor of disclosure places the burden on the agency to justify the withholding of any requested documents." U.S. Dep't of State v. Ray , 502 U.S. 164, 173, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991). Thus the exemptions "must be narrowly construed." Id. "FOIA expressly places the burden on the agency to sustain its action and directs the district courts to determine the matter de novo." U.S. Dep't of Justice v. Reporters Comm. For Freedom of Press , 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989) (internal citations and punctuation omitted).
"To meet its burden, the agency must offer oral testimony or affidavits that are ‘detailed enough for the district court to make a de novo assessment of the government's claim of exemption.’ " Maricopa Audubon Soc. v. U.S. Forest Serv. , 108 F.3d 1089, 1092 (9th Cir. 1997) (citing Doyle v. FBI , 722 F.2d 554, 555–56 (9th Cir. 1983) ). The affidavits "must contain ‘reasonably detailed descriptions of the documents and allege facts sufficient to establish an exemption.’ " Maricopa , 108 F.3d at 1092 (citing Lewis v. IRS , 823 F.2d 375, 378 (9th Cir. 1987) ); see also Berman v. CIA , 501 F.3d 1136, 1140 (9th Cir. 2007) (internal quotation marks and citations omitted) ("the declarations must still describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemptions, and show that the justifications are not controverted by contrary evidence in the record or by evidence of bad faith.") "[T]he government ‘may not rely upon conclusory and generalized allegations of exemptions." Kamman v. IRS , 56 F.3d 46, 48 (9th Cir. 1995).
III. DISCUSSION
The parties agree there are two disputed issues: (1) the FBI's search cut-off date, and (2) the Exemption 5 withholdings.
A. Scope of the FBI's Search
Per the FOIA regulations, "a component ordinarily will include only records in its possession as of the date that it begins its search" when responding to a request. 28 C.F.R. § 16.4(a). Therefore, when running a search to respond to a FOIA request, the agency generally uses the date the search was run as the cut-off date. See Ecological Rights Found. v. Fed. Emergency Mgmt. Agency , No. 16-CV-05254-MEJ, 2017 WL 5972702, at *9 (N.D. Cal. Nov. 30, 2017) ("A search cut-off based on the date that a FOIA search begins therefore is appropriate."); Our Children's Earth Found. v. Nat'l Marine Fisheries Serv. , 2015 WL 4452136, at * 10 (N.D. Cal. July 20, 2015) (same); South Yuba River Citizens League v. Nat'l Marine Fisheries Serv. , 2008 WL 2523819, * 14-15 (E.D. Cal. June 20, 2008) (same). An agency may use a different date than the date-of-search as the cut-off date, but must offer a "compelling justification[.]" Pub. Citizen v. Dep't of State , 276 F.3d 634, 644 (D.C. Cir. 2002)
The FBI did not use the date-of-search, which was February 20, 2018, as the cut-off date. (Dkt. No. 35-3 (Hardy Decl.) ¶ 28.) Instead the FBI used July 20, 2017 as the cut-off date, which the FBI contends is "the date on which it could first document negotiations with Plaintiffs." (Id. ) The FBI justifies the use of the earlier date because, the FBI argues, using the date-of-search date "would incentivize requesters who have submitted improper FOIA requests to drag out efforts to properly define the scope of their requests to ensure the widest possible range." (Id. ¶ 39.) The FBI feared that using the date-of-search for Leopold's request "would mean that seven months of records that did not exist during the period of negotiations would be within the scope the request." (Id. ) These justifications are unpersuasive. Here, the FBI does not offer any evidence—or even argument—that Plaintiffs were responsible for the speed (or lack thereof) of the negotiations. Neither can the Court conclude that the FBI was diligently pursuing resolution of the negotiations with all possible haste. Thus, there is no evidence in this case that would justify using an earlier cut-off date to avoid "rewarding" bad behavior. Similarly, the FBI's contention that the requestor is not entitled to these documents because they did not exist at the time of the request is unavailing. As already mentioned, the date-of-search cut-off is standard under DOJ regulations, which means that requestors ordinarily receive documents created after the date of the request. Further, Plaintiffs could submit another request for these same documents and the FBI would be required to produce them. Forcing Plaintiffs to submit a second FOIA request when this instant request could easily suffice is inappropriate. Thus, the Court concludes that the FBI's cut-off date was improper.
B. Exemption 5
The parties agree that the only exemption at issue here is Exemption 5, which provides that FOIA disclosure does not apply to "interagency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency ...." 5 U.S.C. § 552(b)(5). Exemption 5 exempts documents that are "normally privileged in the civil discovery context." N. L. R. B. v. Sears, Roebuck & Co. , 421 U.S. 132, 149, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) ; see also Sierra Club, Inc. v. United States Fish & Wildlife Serv. , 925 F.3d 1000, 1011 (9th Cir. 2019) ("This exemption has been interpreted as coextensive with all civil discovery privileges."). "Exemption 5 thus covers the attorney-client privilege, the attorney work-product privilege, and the executive deliberative process privilege. Maricopa , 108 F.3d at 1092.
1. Attorney-Client Privilege & Attorney Work Product
a. Legal Standard
Attorney-client privilege protects "confidential communications between attorneys and clients, which are made for the purpose of giving legal advice." United States v. Richey , 632 F.3d 559, 566 (9th Cir. 2011). "Because it impedes full and free discovery of the truth, the attorney-client privilege is strictly construed." Weil v. Inv./Indicators, Research & Mgmt., Inc. , 647 F.2d 18, 24 (9th Cir. 1981). Attorney-client privilege requires the following elements: (1) legal advice of any kind is sought, (2) from a professional legal adviser in his or her capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at the client's instance, permanently protected (7) from disclosure by the client or by the legal adviser, (8) unless the protection be waived. United States v. Martin , 278 F.3d 988, 989 (9th Cir. 2002). "That a person is a lawyer does not, ipso facto , make all communications with that person privileged." United States v. Chen , 99 F.3d 1495, 1501 (9th Cir. 1996). Rather, the question concerns whether the lawyer is providing legal advice in his capacity as an attorney. Id. Exemption 5 also protects attorney work-produce, which "applies to memoranda prepared by an attorney in contemplation of litigation [that] set[s] forth the attorney's theory of the case and his litigation strategy." Sears , 421 U.S. at 154, 95 S.Ct. 1504 (1975) (citations omitted).
b. Analysis
DOJ, Office of Information Policy. The DOJ OIP withheld 2 pages of emails that "consist of exchanges between DOJ attorneys discussing strategic consideration relevant to ongoing litigation." (Dkt. No. 35-1 (Brinkman Decl.) at ¶¶ 24–25.) These are privileged communications and fall under Exemption 5.
DOJ Civil Division. DOJ Civil Division withheld 16 records in full pursuant to Exemption 5. (Dkt. No. 35-2 (Kravitz Decl.) at ¶ 11.) 12 pages contained emails among litigation counsel and other employees discussing the effect of the President's tweets on current and prospective litigation. (Id. ) The other four pages contain arguments that would be made in oral arguments held in those litigations. (Id. ) All 16 pages were written by an attorney and reflect that attorney's mental impressions and strategies. (Id. at ¶ 12.) Thus, these 16 pages are protected from disclosure by Exemption 5 because they are attorney-work product.
The DOJ Civil Division also argues these pages are protected by the deliberative process privilege. (Kravitz Decl. at ¶ 11.) However, since these documents fall within attorney-work product then the Court need not address the applicability of the deliberative process privilege.
FBI. The FBI invoked attorney-client privilege and attorney-work product to withhold 27 pages. (Hardy Decl., Exh. I.) The FBI provided a supplemental Vaughn index that offered additional details, including the subject and participants in these emails. (Dkt. No. 40-1 (Hardy Supp. Decl.).) The declaration states that the withheld pages consist of emails that concerned testimony of FBI employees before congressional committees regarding the investigation of Russian interference in the 2016 election. (Hardy Supp. Decl., Exh. A.) The declaration also notes that the withheld documents were sent to counsel for legal advice, and sometimes the documents include a response from an attorney providing legal advice. (Id. ) Thus, the documents are protected by attorney-client privilege and/or attorney work-product and Exemption 5 applies.
The FBI declaration also withheld these documents on the basis of deliberative process privilege. However, as the documents fall under attorney-client privilege and/or attorney work-product then the Court need not address the applicability of the deliberative process privilege.
CIA. The CIA withheld a six-page email that contained emails to and from the CIA's General Counsel "regarding the interpretation of potential policies. The emails include direct requests for advice from the General Counsel and the General Counsel's legal analyses in response." (Dkt. No. 35-5 (Shiner Decl.) at ¶ 16.) These emails are attorney-client privileged and fall under Exemption 5.
NSA. The NSA redacted "discussions between NSA employees and NSA attorneys discussing preparations for senior NSA leadership to appear before Congress." (Dkt. No. 35-6 (Thompson Decl.) at ¶ 28–29.) "[S]ome of the information withheld included outstanding questions addressed to NSA's Office of General Counsel in preparation for hearings." (Id. ) These pages are attorney-client privileged and fall under Exemption 5.
Office of the Director of National Intelligence. ODNI withheld a portion of a sentence on one-page that "notes a particular legal consideration that was being investigated by then ODNI General Counsel." (Gaviria Decl. at ¶ 17.) This document is not attorney-client privileged because it does not reflect legal advice or legal work product. The mention of a "legal consideration" by one non-lawyer to another non-lawyer does not mean that sentence is privileged.
ODNI also contends this sentence falls under the deliberative process privilege. That contention is dealt with below.
2. Deliberative Process Privilege
a. Legal Standard
The Ninth Circuit "defined the ambit of the deliberative process privilege under Exemption 5 narrowly." Id. Specifically, "[t]o fall within the deliberative process privilege, a document must be both ‘predecisional’ and ‘deliberative.’ " Carter v. U.S. Dep't of Commerce , 307 F.3d 1084, 1089 (9th Cir. 2002). "A ‘predecisional’ document is one prepared in order to assist an agency decisionmaker in arriving at his decision, and may include recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Assembly of State of Cal. v. U.S. Dep't of Commerce , 968 F.2d 916, 920 (9th Cir. 1992), as amended on denial of reh'g (Sept. 17, 1992) (internal citations and punctuation omitted). "The agency requesting the exemption ‘must identify a specific decision to which the document is pre-decisional.’ " Sierra Club , 925 F.3d at 1012 (citing Maricopa , 108 F.3d at 1094 ). A document is deliberative "if the disclosure of the materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Assembly , 968 F.2d at 920 (internal citations omitted).
Congress amended the text of the FOIA in 2016 to state that an agency may only withhold information if "the agency reasonably foresees that disclosure would harm an interest protected by [a FOIA] exemption." 5 U.S.C. § 552(a)(8)(A). The legislative history indicates that the purpose was to "establish a ‘presumption of openness’ in FOIA." Rosenberg v. U.S. Dep't of Def. , 342 F. Supp. 3d 62, 72–73 (D.D.C. 2018) (citing H.R. Rep. No. 114-391, at 9 (2016); S. Rep. No. 114-4, at 3, 7.). The Ninth Circuit has not addressed what the meaning of the "reasonably foreseeable harm" requirement. In fact, only three district courts have substantively examined the amended statute. Each of these courts found that the amendments "support[s] a heightened standard for an agency's withholdings under Exemption 5." Judicial Watch, Inc. v. U.S. Dep't of Commerce , 375 F. Supp. 3d 93, 100 (D.D.C. 2019) ; Rosenberg v. U.S. Dep't of Def , 342 F. Supp. 3d 62, 79 (D.D.C. 2018) (internal citations and punctuation omitted); Nat. Res. Def. Council v. U.S. Envtl. Prot. Agency , No. 17-CV-5928 (JMF), 2019 WL 3338266, at *1 (S.D.N.Y. July 25, 2019) (finding that "the generic, across-the-board articulations of harm provided by the EPA as to a broad range of document types" were insufficient).
b. Analysis
DOJ, Office of Information Policy. The OIP withheld documents in five categories: (1) 94 pages of "draft correspondence to Congress," (2) 3 pages of "press guidance and suggested talking point," (3) 3 pages redacted to withhold "discussions regarding press inquiry" (4) 1 page redacted to withhold "discussions regarding news story", and (5) 2 pages redacted to withhold "discussions regarding draft QFR responses." (Brinkman Decl. at ¶ 10.)
The "draft correspondence to Congress" and "discussions regarding draft QFR responses" were created by OIP employees in responses to Congressional Questions for the Record. 94 pages are "draft versions of correspondence with Congress, including draft responses to Congressional Questions for the Records (QFRs)" and "internal deliberative discussions between Departmental employees, comments, and draft answers for responding to QFRs." (Id. ¶ 16.) These drafts and discussions occurred prior to the release of the final versions of the "documents, correspondence, reports, or press releases and statements, and precede events for which remarks or statements were being released[.]" (Id. ¶ 17.) Thus they are predecisional. The documents are further deliberative because they reflect the Department's staffs’ "candid ‘give and take’ and forthright collaboration." (Id.) Disclosure would result in the foreseeable harm of preventing candid discussions and collaboration, "which is critical to the eventual development of well-reasoned and accurate communications, particularly with the public and Congress." (Id.) Thus, these documents fall under Exemption 5.
The next category of documents is "press guidance and suggested talking points," which are Bates Nos. 20180517-0000818–820. (Id. at Exh. E at *2.) These "consist[ ] of guidance and suggested draft statements used to prepare senior Executive Branch officials to address various questions that may arise during the course of anticipated meetings, official travel, public interactions, and engagement with the press." (Brinkman Decl. at 19.) The Vaughn index indicates this 3-page documents is a "senior official executive branch memo for engaging with the press." (Id. at Exh. E.) But the OIP fails to identify the decision that these documents preceded. Sierra Club , 925 F.3d at 1012 (requiring identification of a specifically policy). The OIP cannot claim exemption of this memo on the basis that an unidentified official may—not will—at some point refer to the memo when preparing for an unidentified press inquiry. Several other courts agree. See First Resort, Inc. v. Herrera , No. CV 11-5534 SBA (KAW), 2014 WL 988773, at *3 (N.D. Cal. Mar. 10, 2014) (finding that "preparations for interviews or other public communications" were not deliberative process); Chattler v. United States , No. C-07-4040 MMC(EMC), 2009 WL 1313227, at *2 (N.D. Cal. May 12, 2009) (finding that "preparations related to testimony before Congress or statements to Congress or the public (including press releases)" "do not seem to be decisions akin to policymaking"). The other two categories of documents include four pages of documents referred to as "discussions regarding press inquiry," and "discussions regarding news story," which are Bates Nos. 20180402-0000085, 20180517-0000008, 20180517-0000074, and 20180517-0000740. The OIP states these are predecisional because they precede "the finalization of the Department's responses to media inquiries and press interactions." (Brinkman Decl. at ¶ 21.) But again, the OIP does not indicate that the OIP's staff was deciding how to respond to a specific press inquiry when creating these documents. Thus, the OIP's contention that they predated a decision is speculative. These documents do not fall under Exemption 5 and should be produced.
FBI. The FBI withheld 7 documents that it concluded fell under the deliberative process privilege. The first two documents (Bates Nos. 914 and 919) are "email forwarding a newspaper article related to a matter under investigation (Russian interference in the 2016 Presidential election, including links between the Trump campaign and Russian government), representing the initiation of discussions about any follow up actions regarding the information reported in the article." (Hardy Supp. Decl. at Exh. A at *2.) These documents are not predecisional, as there is no specific decision that resulted from the discussion. The description suggests that the authors were contemplating whether there should be "any follow up actions." (Id. ) The declaration does not state if any decision or action was ever taken. If that is sufficient as a "decision" to render these documents predecisional then FOIA would never apply to internal discussions about a press report. Thus, these documents are not protected by Exemption 5. The next two documents (Bates Nos. 1140, 1145, and 1146) are the "drafting of, and discussions about the content of, Talking Points about the then on-going but not publicly acknowledge investigation into Russian Interferences into the 2016 election." (Id. at *4.) These talking points were "used to prepare FBI officials to address various questions that may arise during the course of meeting or other interactions inside and outside the agency" and reflected anticipated answers to "actual inquiries." (Hardy Decl. at ¶ 51.) These documents are, thus, predecisional. They are also deliberative because the documents contain summarization regarding facts and their relative importance and proposed agency responses. (Id. ) The foreseeable harm would be interference in the process of deciding how to respond to inquiries regarding FBI investigations. (Id. ) Thus, these documents fall under Exemption 5. Finally, the FBI withheld a "[d]raft FBI response letter responding to" Senate inquiries into the records between President Trump and former FBI Director James Comey. (Id. at *7.) This is predecisional because it predated responsive correspondence from the FBI and is deliberative because it "was shared to solicit feedback [and] edits" and contained the employees "unrefined ideas." (Hardy Decl. at ¶ 50.) Further, the foreseeable harm would be "a chilling effect on agency employees' willingness to share such drafts." (Id. ) Thus, these documents are protected by Exemption 5.
DHS Office of Intelligence & Analysis. The DHS withheld portions of five emails. The withheld portions of the first two emails, which are Bates Nos. 1 and 8. Relate to DHS officials' reactions to new articles and contain information addressing foreign policy and intelligence prioritization, opinion, and analysis and the impact of the news articles on DHS goals. (Henry Decl., Exh. D at *1.) These are not predecisional because they did not precede any decision. General conversations among DHS employees concerning news stories and general comments about how those stories might impact the mission of DHS do not fall under the deliberative process that precedes a resulting decision. The next email (Bates No. 9) withheld portions that contain DHS staff "discussing which documents to redact and on what bases" regarding a FOIA request. (Id.). Therefore, they predate the decision on what to redact and how to justify the redactions. These portions are also deliberative because they reflect the opinions and discussions among the staff regarding the redactions. (Id. ). And the foreseeable harm would be a negative impact on the ability of staff to candidly discuss FOIA requests. (Id.). These portions are properly under Exemption 5. The next email (Bates No. 16) was redacted to remove discussions of the initial findings of an investigation into a security and intelligence threat. (Id. at *2; see also id. Exh. C). The email was sent to inform other DHS employees about the threat so that they could respond accordingly. It is predecisional because it predates decisions by the recipients regarding their office policies. (Henry Decl. Exh. D at *2.) It is deliberative because it contains initial findings of an investigation that was still in-progress and "candid discussions." (Id. ) The foreseeable harm is a "chilling effect" and a fear of sharing initial findings with other members of the agency. (Id. ). Thus Exemption 5 applies. The final portion that was withheld is "information used to inform DHS leaders in preparation for an interagency decision meeting on topics of national security and foreign policy." (Id. ) This information reflected "different decision choices" and "goals" the government could make. (Id. ) Thus the discussion is predecisional and deliberative. The foreseeable harm would be to chill candid discussions. (Id. ) Exemption 5 applies.
CIA. The CIA withheld one email on the basis of deliberate process privilege. The email that "contains discussion points from a meeting concerning a possible recommendation from an internal office to senior [CIA] officials." (Shiner Decl. ¶ 13.) This document is predecisional because the recommendation was being considered for adoption by the senior officials and it is deliberative. The foreseeable harm would be "significant[ ] hamper[ing] of the ability of [CIA] personnel to candidly discuss and assess the viability of certain courses of action." (Id. ¶ 15.) This document falls under Exemption 5.
Office of the Director of National Intelligence (ODNI). The ODNI redacted two emails to remove information that was protected under the deliberative process privilege. The first document (ODNI00004-7) is an "email exchange discussing potential draft responses to a question posed by a reporter" regarding "the current relationship between "IC" leadership and President Trump and the DNI's thoughts on comments made by former DNI Clapper and President Trump." (Gaviria Decl. ¶ 14.) The staff drafted a response, which was then circulated for collective review and edits before being approved by the Director of National Intelligence. (Id. ) This is predecisional, as it preceded the actual response to the report. It incorporates both draft responses, edits, and comments and thus is deliberative. And release would result in the foreseeable harm of chilling candid communications. Thus, this document is under Exemption 5. The second document (ODNI000042–48) is an "email exchange discussing a draft statement by then DNI Clapper summarizing a discussion he had with President-elect Trump on January 11, 2017." (Id. ¶ 16.) This is predecisional, as it preceded the final version of Clapper's statements, and deliberative as it reflects the candid comments and revisions to the draft statement. (Id. ) Release of this information would harm the candid deliberation over agency statements. Thus, this document is also protected under Exemption 5.
IV. CONCLUSION
Plaintiff's motion for summary judgment is GRANTED and Defendants' motion for summary judgment is DENIED on the following issues:
• The scope of the FBI's search;
• The invocation of Exemption 5 for
? DOJ OIP's documents at Bates Nos. 20180517-0000818–820, 20180402-0000085, 20180517-0000008, 20180517-0000074, and 20180517-0000740.
? FBI documents at Bates Nos. 914 and 919;
? DHS documents at Bates Nos. 1 & 8;
The Defendants' motion is GRANTED and Plaintiff's motion for summary judgment is DENIED on all other issues.